Ulmer & Bagley - [2009] FMCAfam 255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ULMER & BAGLEY

[2009] FMCAfam 255

FAMILY LAW – Interim parenting orders – unacceptable risk of abuse or harm – allegations of sexual abuse – child suffering from anxiety – supervised time.

Family Law Act 1975 ss.60CC(2), 60CC(3)

Goode & Goode [2006] FamCA 1346
Harry & Harry [2007] FMCAfam 616

Applicant:

MR ULMER

Respondent:

MS BAGLEY

File Number:

SYC 5638 of 2008

Judgment of:

Altobelli FM

Hearing date:

17 March 2009

Date of Last Submission:

17 March 2009

Delivered at:

Sydney

Delivered on:

24 March 2009

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Rahme

Solicitors for the Applicant:

Mark Rahme & Associates

Counsel for the Respondent:

Mr Batley

Solicitors for the Respondent:

Williams Roncolato Lawyers

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Power

Solicitors for the Independent Children’s Lawyer t:

Legal Aid Commission of New South Wales

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The child, [X] born in 2000, live with the mother;
[X] is to spend time with the father as follows:
(a)From Saturday, 28 March 2008, and for a period of three Saturdays thereafter, from 9 am till 12 noon; and,
(b)From Saturday, 25 April 2008 and for a period of three Saturdays thereafter, from 9 am to 1 pm; and,
(c)From Saturday, 23 May 2008, and for a period of three Saturdays thereafter, from 9 am to 2 pm; and,
(d)From Saturday, 20 June 2008, from 9 am to 3 pm.
[X]'s time with the father is to be at all times in the presence of any one of either Ms U, Mr G, or Ms C, one of whom are also to be present at changeovers.
For the purposes of implementing these orders:
(a)Changeover is to occur at Gloria Jean's at [omitted] Shopping Centre;
(b)The mother is to personally deliver [X] to the changeover point and to forthwith leave the shopping centre after the father has met [X];
(c)The father is to personally return [X] to the changeover point and is to forthwith leave the shopping centre after the mother has met [X].
The father and the mother are restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing;
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
The Independent Children's Lawyer is requested to meet with [X] and explain the orders made today as soon as possible and preferably before 28 March 2009.

IT IS NOTED that publication of this judgment under the pseudonym Ulmer & Bagley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5638 of 2008

MR ULMER

Applicant

And

MS BAGLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The present matter is an interim application relating to [X], born in 2000, and currently eight years old. The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ulmer & Bagley

Details

AGLC: Ulmer & Bagley [2009] FMCAfam 255
Case: [2009] FMCAfam 255
Decision Date: 24 March 2009

CaseChat Overview and Summary

Ulmer & Bagley is a case that concerns the making of interim parenting orders in the context of allegations of sexual abuse of a child by a parent. The child, [X], lives with her mother and had not spent time with her father since October or November 2008. The father brought the application seeking orders that [X] live with the mother and that he have unsupervised contact with her on alternate weekends. The mother opposed contact on the basis that she believed that the father had sexually abused [X]. The Independent Children's Lawyer proposed supervised time with [X]'s father, each Saturday, from 9 am to 12 noon. The primary issue was whether there was an unacceptable risk of abuse if [X] were to spend time with her father. The Court found that there was no unacceptable risk of sexual abuse. The secondary issue was what time, if any, and under what circumstances, should [X] spend with her father. The Court found that supervision was necessary, but not because there was any risk of sexual abuse. Rather, it was to mitigate any anxiety that [X] had and to protect the father against further allegations. The Court ordered that [X] spend time with her father each Saturday from 9 am to 12 noon, to be supervised by the paternal grandparents or Ms U. Changeover was to occur at Gloria Jean's at [omitted] Shopping Centre.

Orders